Lawrence v. Texas

[I spent the winter writing songs about getting better]

I wonder what Preston and Josh will vote for....

I vote option 1.

[Bono]

No, because it infringed on states' rights.
Note that I'm against sodomy laws.

[KillerPollo]

A freedom - hating prune?

LOLOL I Saddam!

[The Duke]

I quote Hugo Black, perhaps the greatest Justice in the history of the Supreme Court, writing his dissent in Griswold v. connecticut, in perhaps the greatest piece of writing in the history of that Court.

"I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe - except their conclusion that the evil qualities they see in the law make it unconstitutional.

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth  Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a ndly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding thisConnecticut law unconstitutional.

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean
the same thing, are to prevail, they require judges to determine  what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York, 198 U.S. 45. That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all."

[Cubby]

Yes it was the correct decision. Too bad it was only 6-3. It would have been better if it had been 8-1 then Scalia would be shown as the activist he is. The real reason they were arrested was because the combination of homosexuality and miscegenation was too much for the Texas police to overlook.

By the way, Connecticut banned birth control for so long probably because of our heavily Catholic population rather than any remnants of Puritan days.

[??????????]

Option 3.

[nclib]

Yes it was the correct decision. Too bad it was only 6-3. It would have been better if it had been 8-1 then Scalia would be shown as the activist he is.

I agree.

[A18]

Hugo Black? Perhaps the best justice to serve on that court? That's some powerful crack. That KKK member supported FDR's court packing scheme in 1937, pretended the New Deal was constitutional, and started this ridiculous notion that the Bill of Rights is incorporated against the states by the privileges and immunities clause.

Nclib and 'Pym Fortuyn' are two illiterate jokes who base nothing on an actual legal argument of any kind and just support blatantly activist court rulings to get the results they want.

I'll take that as an admission that the ruling was complete bunk.

Being the lone dissenter doesn't make you an activist. Quit commenting on stuff you know nothing about.

[The Duke]

Hugo Black? Perhaps the best justice to serve on that court? That's some powerful crack. That KKK member supported FDR's court packing scheme in 1937, pretended the New Deal was constitutional, and started this ridiculous notion that the Bill of Rights is incorporated against the states by the privileges and immunities clause.

Nclib and 'Pym Fortuyn' are two illiterate jokes who base nothing on an actual legal argument of any kind and just support blatantly activist court rulings to get the results they want.

I'll take that as an admission that the ruling was complete bunk.

Being the lone dissenter doesn't make you an activist. Quit commenting on stuff you know nothing about.

Black was in the Klan, but he more than made amends with his record as a jurist on civil rights issues.  He was a strong voice, especially in dissents, in favor of civil rights, and he joined the unanimous opinion ending segregation, Brown v. Board.

His views on the constitutionality of the New Deal eventually won out, as did his view that the 14th Amendment applies to the states.  He was a pioneer in this regard as he was on civil rights, hence his greatness.

[A18]

John Paul Stevens was a pioneer in gay rights. Hence his greatness.

Earl Warren was a pioneer in making sh*t up. Hence his greatness.

That's a bad argument.

[The Duke]

John Paul Stevens was a pioneer in gay rights. Hence his greatness.

Earl Warren was a pioneer in making sh*t up. Hence his greatness.

That's a bad argument.

When something is supported by the text of the Constitution, as I believe civil rights are, then one is a pioneer for overcoming ideology and accepting those things.  I believe Black was right on the 14th, the New Deal, and civil rights.  Hence, I think it makes him great to have pioneered legal opinions in these areas.

[A18]

The first two are not supported by the text of the Constitution.

[dazzleman]

Option 2

[jokerman]

Both options 2 and 3

[Nym90]

Option 1.

[PBrunsel]

I don't know. I feel it was not Constitutionaly sound, but I am also a freedom hating prude. What to do?

[The Duke]

Option 1.

He's back!

[Nym90]

Option 1.

He's back!

Off and on, yes.

[A18]

Option 1.

Great. Another liberal who knows nothing about constitutional law, but just supports blatantly activist decisions because he likes the result.

[Alcon]

Option 1.

Great. Another liberal who knows nothing about constitutional law, but just supports blatantly activist decisions because he likes the result.

Why are you talking as if he can't read what you're writing?  That's just weird.

[A18]

I'm sure he can read both what I wrote and the Constitution. My guess is he's read neither.

[??????????]

John Paul Stevens was a pioneer in gay rights. Hence his greatness.

Earl Warren was a pioneer in making sh*t up. Hence his greatness.

That's a bad argument.

Eisenhower said that Warren was "The worst appointment I made as president". I concur.

[Sam Spade]

Respectfully, Option 3.

I really don't support sodomy laws, but the rationale for the court decision is fairly absent of the Constitution.  (as most cases dealing with the "right to privacy" are)

[CARLHAYDEN]

I quote Hugo Black, perhaps the greatest Justice in the history of the Supreme Court, writing his dissent in Griswold v. connecticut, in perhaps the greatest piece of writing in the history of that Court.

"I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe - except their conclusion that the evil qualities they see in the law make it unconstitutional.

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth  Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a ndly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding thisConnecticut law unconstitutional.

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean
the same thing, are to prevail, they require judges to determine  what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York, 198 U.S. 45. That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all."

Yes, Black was one of the great justices!

BTW, any decision based on an 'emenation' of a 'penumbra' is absurd on its face.

[Cubby]

Hugo Black? Perhaps the best justice to serve on that court? That's some powerful crack. That KKK member supported FDR's court packing scheme in 1937, pretended the New Deal was constitutional, and started this ridiculous notion that the Bill of Rights is incorporated against the states by the privileges and immunities clause.

Nclib and 'Pym Fortuyn' are two illiterate jokes who base nothing on an actual legal argument of any kind and just support blatantly activist court rulings to get the results they want.

I'll take that as an admission that the ruling was complete bunk.

Being the lone dissenter doesn't make you an activist. Quit commenting on stuff you know nothing about.

Why did you put my name in quotes? Do you think I'm not a real poster or something?

Yes I'm sure conservatives have a wonderful "legal arguement", its the bible, not the constitution. And I hope you guys don't oppose this decision because of the marriage issue. The 2 are seperate, it was Scalia who brought it up in his dissent.

If you oppose Lawrence then that means you want police to break into people's homes in the middle of the night and throw them in jail for having sex. The case had nothing to do with marriage. Maybe in the future it could be used as a basis for that, but obviously gay marriage will be banned for a long time so I don't know why this libertarian ruling got the right so upset, unless it was a campaign ploy.